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28 Oct 2019
The Commission on Justice in Wales has published its October 2019 report ‘Justice in Wales for the People of Wales’. Describing the provision of justice as basic duty of the State, the Commission unanimously calls for major reform to the Welsh justice system. The report provides short-term recommendations on specific areas of justice however, the Commission concluded across all areas that the Welsh justice system is overly complex and hindered by an inability to coordinate between policy areas. Craig Court, senior associate solicitor at Harding Evans, provides examples of the lack of coordination between policy areas in Wales and the English and Welsh legislative systems. The Commission called for full legislative devolution, combined with executive powers, and a complete transfer of funding. Dr Huw Pritchard, Lecturer in Law at Cardiff University, and Keith Bush QC, Honorary Professor at the Hillary Rodham Clinton School of Law at Swansea University provide comment.
Tasked with reviewing the operation of the justice system and providing recommendations for its future, the Commission said: ‘The people of Wales both need and deserve a better system. Justice is not an island and should be truly integrated into policies for a just, fair and prosperous Wales.’ The Commission concludes: ‘The fundamental problem lies in the split between two governments and two legislatures of responsibilities for justice on the one hand and social, health, education and economic development policies on the other.’
The Commission has found that the current Welsh justice system disadvantages the Welsh people. The report’s finding that the Welsh prison system lacks facilities for women offenders is an example of this situation. Craig Court highlights the ‘potential discriminatory effect on Welsh female prisoners who, when sent to a female prison in England due to the lack of a female prison in Wales, will not benefit from Welsh specific legislation relating to, among others, health, particularly mental health and wellbeing’.
The Commission has also called for law applicable in Wales to be formally identified as the law of Wales, distinct from the law of England, to avoid confusion and a lack of accountability in instances where the Welsh Assembly has passed distinctive legislation incorporating international human rights.
Using the Social Services and Well-being (Wales) Act 2014 (SSW(W)A 2014) as an example, Court says: ‘it could be argued that there are competing interests for those providers who have a prison in their area as the prison estate is governed by the Ministry of Justice…[SSW(W)A 2014] requires that due regard must be had to the United Nations Convention on the Rights of the Child which has status in Welsh legislation via the Rights of Children and Young Persons (Wales) Measure 2011. That is not the position in England and so those authorities in Wales with responsibilities to provide services to the justice system may struggle to meet their obligations under Welsh legislation unless Justice is devolved so that all of the services can work together.’
The Commission recommends that full legislative devolution, combined with executive powers, along with a full transfer of funding will enable the proper alignment of justice policy and spending with social, health and economic policies, improve accountability and place justice at the heart of government.
Huw Pritchard says: ‘At first sight, the overarching recommendation for devolution of the justice system may seem a radical approach. However, this merely brings Wales in line with other jurisdictions in the UK. The radical approach comes from what could be achieved in the long-term vision the Commission is encouraging through providing better means of civil dispute resolution, aligning criminal justice policy with social, health and education policies, and opportunities to innovate with new approaches to the justice system that are proportionate for Wales.’
Keith Bush supports the argument that this is not a novel approach from the Commission: ‘Many have argued, since the inception of Welsh devolution 20 years ago, that the retention of these powers at a UK level is anomalous. The existence, within a single legal system, of two legislatures, each independently generating divergent laws on issues such as housing, the welfare of children and social care, will inevitably give rise to increasing practical problems.’
Transferring legislative power will not be simple process however, Keith Bush explains: ‘Transfer of responsibility over the field of justice and policing to the devolved institutions in Wales will, nevertheless, be a huge step. While the devolution of powers over health, education, agriculture, the environment and so on to the newly-constituted Assembly in 1999 involved a reasonably smooth transition, given the fact that these fields were already being administered in relation to Wales by the then Welsh Office, expertise within the Welsh civil service in relation to matters of justice policy, which has up until now been the monopoly of Westminster, is currently extremely limited and the Commission recommends that a first step on the road to implementing its recommendations should be the building of capacity in this area. Clearly the transfer to the Welsh budget of the appropriate proportions of the budgets of the Ministry of Justice and the Home Office, could be a source of considerable debate as to what those proportions should be.’